Florida Statute Sections 718.1265 and 720.316 provide condominium associations and homeowners’ associations, respectively, the right to exercise certain emergency powers “in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in …
the locale in which the condominium is located [for a condominium association]”.
the area encompassed by the association [for a homeowner’s association]”.
The range of emergency powers includes, but is not limited to:
- The right to conduct board or membership meetings by means other than in person gatherings;
- The right to determine that portions of the association’s property would be unavailable for entry or occupancy;
- The right to levy special assessments without a vote of the owners; and
- The right to borrow money and pledge association’s assets as collateral.
Clearly, these emergency powers would apply in the event of physical damage to association properties caused by an event that results in a state of emergency being declared within the State of Florida. However, could these emergency powers be used when the “damage” to the association may be economic in nature (such as the loss of expected assessment revenue) or in the form of possible future personal injury or death to others (caused by the permitted use of the association’s property by infected individuals) and when the damage is caused by the consequences of a pandemic, such as COVID-19?
On March 27, 2020, the Florida Department of Business and Professional Regulation issued its emergency order 2020-04. That order recognized that there were certain emergency powers that were available to associations, enumerated in both the condominium statute (in Section 718.1265) and the HOA statute (in Section 720.316), that could be used as a result of COVID-19. Those powers expressly recognized by emergency order 2020-04 included the right to conduct board or membership meetings by means other than in person gatherings and the right to determine that portions of the association’s property would be unavailable for entry or occupancy. However, the powers expressly recognized by emergency order 2020-04 did not include the right to levy special assessments without a vote of the owners or the right to borrow money and pledge association’s assets as collateral.
On May 20, 2020, the DBPR issued a new order, emergency order 2020-06. The new order terminates most of the provisions in the original order, effective June 1, 2020.
The fact that the DBPR has issued this new order does not mean that the emergency powers of associations that were referenced in the earlier order cannot be used. However, it means that, in the event a purported emergency power is used by an association which is subsequently challenged by an owner in the community, a court would need to decide whether that emergency power could be used. The DBPR is no longer providing associations with a possible “safe harbor” to use in arguing that an association’s emergency powers can be used.
It should also be noted that the impact of the original DBPR emergency order, and the impact of the subsequent DBPR emergency order that terminates the original order, is subject to debate. Many attorneys have questioned whether the DBPR had the requisite constitutional authority to issue a pronouncement that the needed “emergency” that was required to trigger these “emergency powers” was in existence. For those attorneys holding such a belief, the issuance of the original order was viewed as an ineffective act, as only the Florida legislature could have modified the provisions of these statutes to clarify whether the “emergency powers” could be triggered by a pandemic, and only a Florida court could have made a binding interpretation of whether the existing provisions of these statutes would allow for an association’s use of these “emergency powers” in the event of a pandemic. These attorneys also believe neither of these DBPR emergency orders would have impacted the issue of whether community associations could utilize “emergency powers” due to the pandemic.
Any community association seeking to invoke emergency powers should seek assistance of its counsel before doing so.
For the latest news on COVID-19’s effects on community associations, contact our association law team for more information.
On April 2, 2020, Florida Governor Ron DeSantis, in response to the COVID-19 pandemic, issued Executive Order 20-94, entitled “Mortgage Foreclosure and Eviction Relief” (“EO 20-94”). EO 20-94 provided for a statewide moratorium on mortgage foreclosure causes of action as well as a statewide moratorium against residential evictions based upon the non-payment of rent (While there was no express limitation of that moratorium to residential mortgage foreclosure causes of action, it appears, from the language of that order, that it was only intended to apply to residential mortgage foreclosure actions).
EO 20-94 is currently set to elapse on May 17, 2020. However, it appears likely that the provisions of EO 20-94 will be extended beyond that current deadline through the issuance of a subsequent executive order.
One of the many questions begged by the issuance of EO 20-94 was this one: “Were homeowner’s association and condominium association lien foreclosure actions intended to be covered under the moratorium on mortgage foreclosures established by EO 20-94?”
“While there is no reference, in EO 20-94, to homeowner’s association liens or condominium association liens, the uncertainty as to whether the association lien foreclosure actions were intended to be covered by EO 20-94 stems from the interdependency, between the association lien foreclosure actions and mortgage foreclosure actions, established by the Florida Statutes. Section 718.116(6)(a), Florida Statutes and Section 720.3085(5), Florida Statutes, both provide: “The association may bring an action in its name to foreclose a lien for unpaid assessments secured by a lien in the same manner that a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien.”
Thus, if an association lien foreclosure action is to proceed in “the same manner in which a mortgage of real property is foreclosed”, and a mortgage on real property cannot currently be foreclosed due to EO 20-94, it would then seem to follow that association lien foreclosure actions must be subject to the same statewide moratorium that currently prevents mortgages on real property from being foreclosed.
This result may not have been intended by Governor DeSantis. That appears to be demonstrated by the fact that EO 20-94 did not expressly restrict all foreclosure actions on real property. Instead, only mortgage foreclosure actions were restricted. That conclusion also appears to be bolstered by the following language found in Section 3 of the order: “Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage payments or rent payments.” If EO 20-94 were intended to also apply to association lien foreclosure actions, it would have been likely that Section 3 would have been rewritten to have read: “Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage payments, homeowner’s association or condominium association payments, or rent payments.”
However, a reading of EO 20-94 as restricting all foreclosure actions on real property, or at least on residential real property, appears to be supported by the apparent underlying goal of that order — preventing Florida residents from being forced out of their residences, during the pandemic, due to a failure to pay obligations associated with the occupancy of those residences, for those obligations (such as a mortgage obligation or a rent obligation) that afford a creditor the right to compel the resident to vacate the residence (through the completion of a foreclosure sale by the mortgage holder or the completion of an eviction action by the landlord). Since a homeowner’s association and a condominium association are both in the class of creditors that also have the right to compel the resident to vacate the residence (through the completion of a foreclosure sale), perhaps Governor DeSantis did intend for EO 20-94 to also apply to a homeowner’s association and a condominium association.
Regardless of Governor DeSantis’ original intentions at the time of the issuance of EO 20-94, this reader hopes that, in the event the restrictions imposed by EO 20-94 are extended beyond the current deadline through the issuance of a subsequent executive order, the subsequent order will provide clarity as to this issue. In addition, perhaps the extended order, assuming one is issued, will provide an exception for vacant properties as there would appear to be no reason to prevent foreclosures on properties that are currently vacant.
For the latest news on COVID-19’s effects on community associations, contact our association law team for more information.
May 14, 2020 Update:
Executive Order 20-121 (“EO 121”) was issued today (May 14, 2020) by Governor DeSantis. It extends EO 20-94 through the end of the day on June 1, 2020. Unfortunately, EO 20-121 did not clarify whether EO 20-94 was intended to also cover homeowner’s association and condominium association lien foreclosure actions. It also did not provide an exception for vacant properties. Instead, EO 20-121 merely reads: “I hereby extend Executive Order 20-94 until 12:01 a.m. on June 2, 2020.”
Many community association declarations contain restrictions on the parking of vehicles on streets located within the community. For communities that contain private streets maintained by the association, it seems clear that these restrictions would be enforceable. However, for communities that contain public streets, the enforceability of those restrictions is not so clear.
There appears to be no reported decision by a Florida appellate court dealing with the issue of whether a community association can enforce restrictions purporting to prohibit parking on public streets. However, that may soon change.
A trial court, in Pinellas County, has ruled that a homeowners association cannot enforce such parking restrictions relating to public streets. That case arose from the filing of a lawsuit by the impacted owners which sought the entry of an injunction prohibiting the association from enforcing a parking restriction relating to public streets. The trial court granted that injunction. The association that was a party to that case filed an appeal with the Florida Second District Court of Appeal. In Woodfield Community Association, Inc. v. Ortiz by and through Ortiz, 251 So. 3d 312 (Fla. 2d DCA 2018), the appellate court set aside the injunction, but only on the basis that the trial court’s order failed to include certain information needed to support entry of an injunction. The appellate court did not discuss the underlying issue of whether the injunction would have been sustained, on its merits, had the trial court listed the necessary information. Instead, that issue would need to be presented to the appellate court by the filing of a new appeal after the trial court enters a new order.
If such an order is entered by the trial court and the association files another appeal, Florida’s Second District Court of Appeal will be in a position to author the first Florida appellate court opinion as to the enforceability of parking restrictions relating to public streets.
There are at least 3 reported decisions, from out-of-state appellate courts, that have addressed this issue. In one of the cases, Raintree of Albemarle Homeowners Association, Inc., v. Jones 413 S.E. 340 (Va. 1992), the court ruled that such restrictions could not be enforced. In the other two cases, Maryland Estates Homeowners’ Association v. Puckett, 936 S.W. 2d 218 (Mo. Ct. App. 1996); and Verna v. The Links at Valleybrook Neighborhood Association, Inc., 852 A. 2d 202 (N.J. Super. Ct. App. 2004), the court ruled that such restrictions could be enforced, at least as to owners in the community.
The argument to support a finding that these restrictions are not enforceable is that an entity, such as a community association, does not have the authority to control access to or the use of a road that is owned by a municipality. The argument to support the enforceability of these restrictions is that parties, such as an association and its owners, are free to enter into a contract (the recorded deed restrictions) containing restrictions that would impose greater limits on an owner’s use of property than those imposed by governmental restrictions.
Many homeowners associations and condominium associations struggle with the manner in which a bankruptcy filing by one of its owners should impact the ledger that is maintained by the association for the property owned by the owner that files the bankruptcy case. I often see associations fail to maintain a ledger, or other account information, which will allow the association to distinguish between: (a) the amounts that came due before the filing of the owner’s bankruptcy petition (often referred to as the “Pre-Petition Amounts Due”); and (b) the amounts that came due after the filing of the owner’s bankruptcy petition (often referred to as the “Post-Petition Amounts Due”). The best way to maintain records that distinguish between the Pre-Petition Amounts Due and the Post-Petition Amounts Due is to separate a ledger for an owner that files bankruptcy into two ledger parts. One part would reflect the Pre-Petition Amounts Due and the other part would reflect the Post-Petition Amounts Due.
The ledger for the Pre-Petition Amounts Due (the “Pre-Petition Ledger”) would reflect the amounts due, itemized by type of charge, as of the date of the filing of the owner’s bankruptcy petition. That ledger balance would increase, after the bankruptcy filing, by the addition of any interest charges or late fees associated with the unpaid assessments listed on the Pre-Petition Ledger and by the addition of any attorney’s fees or legal costs associated with collection efforts relating to the recovery of the Pre-Petition Amounts Due. The ledger for the Post-Petition Amounts Due (the “Post-Petition Ledger”) would include all future accruing assessments after the date of the bankruptcy filing, as well as interest charges or late fees associated with the unpaid assessments listed on the Post-Petition Ledger. That ledger would also include any attorney’s fees or legal costs associated with collection efforts relating to the recovery of the Post-Petition Amounts Due. Once the bankruptcy case ends, the owner’s split ledgers can typically be re-combined into a single ledger.
It is important for an association be able to separate the Pre-Petition Amounts Due from the Post-Petition Amounts Due for a number of reasons. Several of those reasons are discussed below.
First, when a payment is received for an account in which the owner is in bankruptcy, the association will need to apply it to either the Pre-Petition Amounts Due or the Post-Petition Amounts Due. The “side of the ledger” to which the payment will need to be applied will depend upon a number of factors, including whether the payment was made by the owner or the bankruptcy trustee and, in the event of a Chapter 13 filing, the manner in which the association’s claim is to be treated in the owner’s bankruptcy plan. If there is a single ledger that is maintained, there would be no clear way to distinguish the payments made toward the Pre-Petition Amounts Due from the payments made toward the Post-Petition Amounts Due.
Second, in a Chapter 7 case that results in a bankruptcy discharge and in which the association did not have a recorded lien at the time of the filing of the bankruptcy petition, the association will typically need to write-off all Pre-Petition Amounts Due. That task is far easier if the association splits its ledgers or otherwise maintains records which will allow it to easily determine which amounts were included in the Pre-Petition Amounts Due.
An association can continue to seek recovery of post-petition assessments from an owner who files a Chapter 7 case and obtains a bankruptcy discharge. See 11 USC §523(a)(16). However, if an association does not split its ledgers, it may find it difficult to determine the amount of post-petition assessments and other charges that can be demanded as part of the Post-Petition Amounts Due.
Third, if the owner files a Chapter 13 case, he might present a bankruptcy plan that provides for payment of all Pre-Petition Amounts Due, with the payment of all Post-Petition Amounts Due being made outside of the plan. That owner might also present a plan that calls for any lien held by the association which secures the Pre-Petition Amounts Due, to be “stripped away”, with the owner remaining liable for paying all Post-Petition Amounts Due. In either instance, if there is a single ledger that is maintained, there may be no clear way to distinguish those amounts that are being claimed under the Pre-Petition Amounts Due from those amounts being claimed under the Post-Petition Amounts Due.
The penalty for not maintaining accurate information can be severe. An association that seeks to recover debt that has been discharged in bankruptcy or that seeks to recover pre-petition debt (subject to limited exceptions) directly from an owner who is a debtor in an active bankruptcy case, may be liable for monetary damages and/or attorney’s fees for violating the “discharge injunction” or the “automatic stay” provisions of the Bankruptcy Code. See 11 USC §105(a), § 362(a), and §524(a).
At least one bankruptcy court’s written opinion has recognized the need for an association to maintain separate accounting records to differentiate the Pre-Petition Amounts Due from the Post-Petition Amounts Due. In the case of In re Moreno, 479 B.R. 553, 567 (Bankr. E.D. Cal. 2012), the court granted sanctions against an association for its attempt to collect amounts which had been discharged in bankruptcy. In that case, the court noted: “once the Debtor filed for bankruptcy protection, the Association should have started a new and separate accounting to properly track the post-petition debt that would be covered by §523(a)(16).” The court further noted that the association’s attempt “to divide the discharged [pre-petition] portion of the Debtor’s account from the post-petition portion of her account by simply drawing a line across the Accounting [on the date of the bankruptcy filing]” did not result in a proper determination of the post-petition amounts due as that caused post-petition interest to be improperly calculated on both the unpaid pre-petition debt (which was discharged) and the unpaid post-petition debt. 479 B.R. at 567-68.
An association that fails to either split its ledgers into a Pre-Petition Ledger and a Post-Petition Ledger or to take other steps to maintain separate accounting records to distinguish the Pre-Petition Amounts Due from the Post-Petition Amounts Due is likely to encounter greater difficulties in determining the amounts that are due from owners who file bankruptcy. Also, the failure to take the needed steps to maintain separate accounting records can result in an association being subject to sanctions from a bankruptcy court in the event the association seeks to collect amounts which are no longer recoverable.
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Many homeowners associations and condominium associations in Florida will be greatly impacted by a Florida appellate court decision that was issued in May of 2015. On May 27, 2015, the Fourth District Court of Appeal, in the case of Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., No. 169 So. 3d 145 (Fla. 4th DCA 2015), interpreted the provisions of Section 720.3085, Florida Statutes, which allow a homeowner’s association to recover a portion of the past due amounts owed on an account in which title has been transferred through the issuance of a certificate of title (“COT”) in a mortgage foreclosure action, as being inapplicable where the association’s own declaration provides for a recovery which would be less than the recovery provided for under this section of the Florida Statutes.
While the Westwood Gardens case dealt with a third-party purchaser at a mortgage foreclosure sale rather than a situation involving the acquisition of title by a first mortgage holder, it appears the holding in that case would also apply in the case of a foreclosure sale in which the former first mortgage holder (or its assignee) becomes the owner.
Section 720.3085, Florida Statutes provides that in the event of the completion of a mortgage foreclosure action resulting in the issuance of a COT, the new owner will be liable for a portion of the past due balance that existed as of the date of the issuance of the COT. However, based upon the Westwood Gardens decision, this section will not apply unless the declaration for the association is silent, contains language which matches the language set forth in this section, or contains language which incorporates, by reference, the provisions in this section. The vast majority of homeowners’ association declarations I have reviewed over the past 25 years contain provisions similar to those that were found in the association’s declaration in Westwood Gardens.
While the association in Westwood Gardens was a homeowners association, it appears the holding in that case could also be extended to condominium associations.
As a result, all community associations should consider reviewing their declarations to determine if they contain provisions that deal with the right, if any, of the association to recover amounts that pre-dated the transfer of title, including a situation in which the transfer of title arises through the issuance of a COT from the purchaser at a mortgage foreclosure sale. The association should then consider whether to change that language (assuming the procedures for making an amendment can be satisfied), to allow for the recovery of amounts that pre-dated the transfer. The association could seek to change its declaration to provide for the same recovery as is available under Section 720.3085, Florida Statutes or Section 718.116, Florida Statutes, or it can seek to provide for recovery of amounts which exceed those available under the Florida Statutes.
Community Associations Have Standing to Assert Defenses to Mortgage Foreclosure Actions
When a community association acquires title to a property through the completion of a lien foreclosure action, it must then determine whether to oppose an attempt by a purported lender to foreclose superior mortgage on the property. Lenders have often argued, based upon certain Florida appellate decisions, that the association has no legal standing to assert defenses to a mortgage foreclosure action in situations in which the mortgage was executed by a predecessor owner. However, there now appears to be a recent appellate court case to support the position of a community association.
As far back as 2012, the Fifth District Court of Appeal, at least in dicta, stated that the issue of standing, as it relates to the right to challenge and/or defend against a purported lender’s claims in a mortgage foreclosure action, is not subject to a blanket rule and depends upon the relationship of the party challenging a mortgage to the subject property. Centerstate Bank Cent. Fla., N.A., v. Krause, 87 So.3d 25 (Fla. 5th DCA 2012).
In Centerstate, the court stated “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation.”
The court in Centerstate further stated: “On the other hand, standing to contest the validity of a mortgage belongs to the mortgagor and to third persons whose rights or interests are adversely affected by the mortgage, such as junior mortgagees or creditors with an interest or lien in the underlying property.”
In the recent case of Tanner v. Bayview Loan Serving, LLC, 2015 Fla App. LEXIS 12027 (Fla. 5th DCA 2015), the Fifth District Court of Appeal, relying upon the principles of standing discussed in Centerstate, reversed the entry of a foreclosure judgment based upon arguments made by a junior lienholder, who asserted that the judgment was improper because the lender had failed to present evidence at a trial. The trial court had entered a judgment based upon a stipulation between the lender and the borrower/property owner.
In so doing, the Court recognized the right of a junior lien holder to challenge the enforcement of a first mortgage and to require that first mortgage holder establish its rights to enforce the mortgage and prove the right to recovery of amounts claimed to be due under the mortgage. The Court in Tanner (citing to Centersate) stated: “Third persons whose rights or interests are adversely affected by a mortgage, such as junior mortgages or creditors with an interest or lien in the underlying property, have standing to contest a foreclosure action brought by a party claiming a superior interest.”
Clearly, if a party holding a junior lien on property has standing to assert a defense to the enforcement of an allegedly superior mortgage, an owner of property, whether that person or entity was the owner when the mortgage was created or is a successor owner, would have that standing as well. An owner, even if that owner is a community association, clearly has an “interest” in the underlying property and would be adversely effected by a mortgage.